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Under G.S. 14-208.12A, a sex offender can petition the superior court for removal from the sex offender registry “[t]en years from the date of initial county registration.” Many times I have been asked whether time spent on another state’s registry counts toward the 10-year minimum registration period in North Carolina. In other words, does the phrase “initial county registration” refer only to a person’s initial registration in North Carolina, or does it also apply to the person’s registration in a county in another jurisdiction?

The court of appeals answered the question today in In re Borden. The time spent on another state’s registry does not count.

In Borden, the petitioner was convicted of “Rape 1” or “Sexual Abuse 1st Degree” (the record is not clear) in Kentucky in February of 1995. He initially registered in Kentucky in 1995. He moved to North Carolina some time later—apparently around 2009, but perhaps as early as 2002—and registered here. After receiving a letter from Kentucky in June 2010 stating that he was no longer required to register in Kentucky, Mr. Borden filed a petition in Guilford County to terminate his registration requirement in October 2010. The trial court determined, based on Mr. Borden’s initial date of registration in Kentucky, that he was qualified to have his petition granted. The State appealed.

The court of appeals reversed, holding that “initial county registration” means the date a person first registers in North Carolina. The court reasoned that the purposes of the sex offender registration law are to “protect the public, maintain public safety, and assist law enforcement agencies and the public in knowing the whereabouts of sex offenders,” and that allowing offenders to be removed from the registry without being on the registry for at least ten years in North Carolina would contravene those purposes. The court also noted that its interpretation makes for a better fit with other provisions in the sex offender law. For example, the law requires registration information to be filed with the “sheriff of a county,” and “sheriff” is defined in G.S. 14-208.6(7) as “the sheriff of a county in this State.” Even giving Mr. Borden the benefit of the earliest initial North Carolina registration date noted in the record (2002), the appellate court concluded that 10 years had not passed and the petitioner was not yet eligible for removal from the registry.

The bottom line rule from Borden is that a person’s initial date of registration in North Carolina is the date that matters under G.S. 14-208.12A. That rule is pretty easy to apply, although it’s possible to think up questions that test its limits. What about a person who initially registers in North Carolina but then moves out of state for 10 years? Can he swing back into North Carolina a decade later and, based on his date of “initial county registration,” successfully petition for removal?

Or let’s say Mr. Borden had completely finished his registration obligation in Kentucky before he moved to North Carolina. Would he still be required to register on moving to North Carolina?The answer may depend on which prong triggers registration under G.S. 14-208.6(4)b., the statute governing registration for out-of-state convictions. The first prong of that statute requires registration if the offense is “substantially similar” to an offense that is reportable in North Carolina. Given the rule from Borden, it’s not clear that even a completed registration term in another jurisdiction satisfies the person’s obligation to register in North Carolina for an offense that is reportable under that prong. The second prong of the statute requires registration if the offense requires registration in another state regardless of whether it is reportable in North Carolina. If an offense were reportable in North Carolina on that basis alone, it is clearer that the offense would no longer be deemed to “require registration” under the laws of the other state once the offender completed a registration period there, and thus it would not appear to require registration here.

What are your thoughts on a person that is (a) convicted of a reportable offense (lets say in 2000), (b) they register in NC in the county where the conviction was obtained, and then (c) they move to another state in 2001–where they registered in accordance with that state’s laws and have maintained their registration and residence ever since.

Can the person apply for removal from the list in NC in the county where the conviction was obtained and where they initially registered? Even though they may have only been on the NC list for about one year?

I ask due to receiving several questions from folks that were convicted in NC, moved to another state and complied with that state’s registration requirements, but were told they needed to apply to the state where the conviction was obtained to be removed from their current state’s list.

Since G.S. 14-208.12A was amended to allow petitions to be filed where the conviction was obtained (as opposed to the petitioner’s county of residence), it seems like the petioner could file in NC assuming he filed 10 years after initially registering in NC (notwithstanding their out-of-state moves).

Thanks for your insights. Reading these statutes have given me an immense headache.

Wil Bunch

August 10, 2012 at 9:14 pm

Case involving out of state/initial registration

Michigan recently amended their statutory rape laws to include Romeo & Juliet provisions as it is here in NC. Defendant moved from Michigan to NC in January. He was convicted in 1993 of statutory rape of his girlfriend who was 16. He was 17. He had been on the registry since it began in 1995. The new law took effect July 11, 2011 in Michigan. He petitioned the court in NC to be removed from the registry since this was no longer a registerable offense in Michigan and certainly not in NC. Petition was granted only to be appealed by the state on the grounds of initial registration. Defendants contention is —why would they put a person or appeal to keep a person on the sex registry for something that is not even a crime in neither state.

James Whitman

July 24, 2013 at 3:36 pm

I made a plea agreement to a Class 1A Misdemeanor Sexual Battery Charge back in November 2011.
I was placed on 2 years probation with a 75 day suspended sentence.
Since I lost all sources of income from this, I also lost my home in NC and luckily had a place in Florida paid for. The only problem was there wasn’t any intrastate compact to allow me to move while on probation. I again was lucky again and I made a motion to the court to do my 75 day suspended sentence thereby, did the 75 days therefore I was able to move.
My question is since my initial registration and sentence was in NC; am I able to count my time in Florida towards my 10 yrs before I can petition?
I know the subject matter came up before, but I was unable to find what the answer to this question.
Thank you very much!

Julie

September 18, 2013 at 12:24 pm

What is the statue of limitations in the state of Kentucky, if you are convicted in another state and the time is up in that state and you don’t have to register in that state anymore, do you have to register in Kentucky for lifetime? Thanks so much!

John

June 2, 2014 at 6:11 pm

I am posing something similar but has not yet been covered. I was convicted in Texas for a 3rd degree felony “indecency with a child by exposure”, sentenced to probation, served full probation without incident in Georgia where I lived before and since the incident. Finished probation completely. Petitioned the court in Georgia for removal from the registry successfully and is currently living without the requirement to register in GA.
IF I wanted to move to NC, would I be required to register and be on the registry for 10 years before being able to petition for removal.

[…] he or she is eligible to petition for removal. In In re Borden, 216 N.C. App. 579 (2011) (discussed here), the court of appeals read the words “initial county registration” in G.S. 14-208.12A to refer […]

[…] before he or she is eligible to petition for removal. In In re Borden, 216 N.C. App. 579 (2011) (discussed here), the court of appeals read the words “initial county registration” in G.S. 14-208.12A to refer […]

Molly

January 22, 2018 at 9:15 pm

Does an offender have to live in NC for 10 uninterrupted years after registering with a NC sheriff for an out-of-state conviction? If the offender was duly registered and the non-NC state subsequently granted removal, is a petition still required to remove the offender from the NC SOR? Or is there another method available?